Criminal News

New Jersey Criminal Lawyers Schwartz Posnock

An individual who is living legally in the U.S. can be deported if he or she is convicted of a crime while here. Federal law specifies, however, that deportation has to be automatic if the individual is convicted of what the law calls an “aggravated felony” – a phrase that has turned out to be a challenge to define in a string of Supreme Court cases.

New Jersey Criminal Lawyers Schwartz Posnock

In Florida v. Jardines, 11-564 (March 26, 2013), in a 5-4 decision, the United States Supreme Court affirmed suppression of evidence of marijuana obtained in violation of the Fourth Amendment. After an unverified tip that Jardines was growing marijuana in his home, police observed the home for 15 minutes, saw no movement and could not see into the house through drawn blinds. The police then brought a drug-sniffing dog onto the porch who ran around on a 6-foot leash and positively identified the odor of marijuana, with the door to the home as the strongest point source of the odor. Based on these observations, officers obtained a search warrant. The Court held that the porch is the curtilage of the home which enjoys protection as part of the home itself. Entry onto the porch with a trained drug-sniffing dog to find incriminating evidence was an unlicensed physical intrusion outside the scope of social custom. The officers’ purpose in entering the porch is relevant to whether they had an implied license to be there. Regardless of whether the investigation violated Jardines’ expectation of privacy under Katz v. United States, 389 U.S. 347 (1967), the officers’ conduct intruded upon the “property rights baseline” of the Fourth Amendment. Three concurring justices would have affirmed the suppression on privacy and property grounds.
In an opinion written by Justice Scalia, the Court held that a dog sniff at the front door of a house where the police suspected drugs were being grown constitutes a search for purposes of the Fourth Amendment.

New Jersey Criminal Lawyers Schwartz Posnock

Memorial Day is upon us, signalling the start of Summer, a time to relax and party at the Jersey Shore. Day trippers and overnight guests, from New Jersey and elsewhere, converge on the Monmouth County, Ocean County, and Atlantic County beaches and bars in the Jersey Shore communities of Asbury Park, Ocean Grove, Neptune, Avon, Bradley Beach, Belmar, Spring Lake, Long Branch, West Long Branch, Oceanport, Sea Girt, Seaside Heights, Point Pleasant, Sea Bright, Brielle, Mantoloking, Manasquan, Red Bank, Long Beach Island, Island Beach State Park, Sandy Hook, Atlantic City, and Ventnor to meet, greet, and often, drink alcohol or use marijuana or other drugs. Given that many of these young people are high school or college students, or just beginning their careers, an arrest and conviction for a criminal offense can have terrible consequences for their future.

New Jersey DUI – Failure to Obtain Warrant for Blood Samples May Lead to Suppression of Blood Test Results and Dismissal of Drunk Driving/Driving Under the Influence Cases

New Jersey Criminal Lawyers Schwartz Posnock

Police officers who stop seemingly drunk drivers may need to obtain a warrant before having the driver’s blood tested to determine the presence of alcohol or controlled substances.

In Missouri v. McNeely, No. 11-1425, decided April 17, 2013, the United States Supreme Court ruled that every case in which a blood sample is taken from a driver without his consent will be judged on its own facts. Thus, the officer can never know whether failure to get a warrant will jeopardize a drunk-driving case altogether.

Immigration Consequences of Guilty Pleas in New Jersey State and Federal Criminal and Municipal Court Cases

New Jersey Criminal Lawyers Schwartz Posnock

On October 30, 2012, in a case which will have significant consequences in the state and federal courts of New Jersey, the United States Supreme Court heard argument to settle a dispute among the lower courts regarding whether to give non-citizens the benefit of a ruling that requires their lawyers to advise them on the immigration consequences of a guilty plea. At issue in the new case of Chaidez v. United States (11-820) is the potential retroactivity of the Court’s 2010 ruling in Padilla v. Kentucky.

A Court Cannot Use a Municipal Court Defendant’s Silence at the Scene of an Auto Accident As Substantive Evidence of Guilt

New Jersey Criminal Lawyers Schwartz Posnock

The New Jersey Supreme Court held, in State v. Stas, that a Municipal Court’s use of a defendant’s silence at the scene of a motor vehicle accident as substantive evidence of his guilt and to assess his credibility violated his privilege against self-incrimination.

Under federal criminal law, the use for any purpose at trial of a defendant’s silence after his arrest and the administration of Miranda warnings violates his privilege against self-incrimination and his right to due process. Under New Jersey law, even silence that precedes Miranda warnings, if “at or near” the time of the criminal defendant’s arrest, cannot be used for any purpose at trial. In this instance, defendant was arrested for allowing an intoxicated person to drive a motor vehicle over which he had custody or control, and remained silent as his co-defendant admitted to driving while intoxicated. Defendant’s silence “at or near” his receipt of a summons at the scene for a violation of the drunk driving laws served as the functional equivalent of an arrest. As a result, his silence should not have been used for any purpose, and the reviewing court’s reliance on that silence constituted reversible error.

The New Jersey Supreme Court Makes it Harder for the State to Justify Waiving a Juvenile Defendant to Adult Criminal Court

New Jersey Criminal Lawyers Schwartz Posnock

The New Jersey Supreme Court, in State in the Interest of V.A., a Minor, made it harder for prosecutors to justify the decision to waive a New Jersey juvenile court defendant to adult criminal court. Previously, a prosecutor’s decision to waive juveniles to adult criminal court once they reached the age of 16 was only subject to reversal if that decision constituted a patent and gross abuse of discretion. Since the decision to treat a juvenile as an adult criminal defendant carries serious penal consequences for the juvenile, the Supreme Court found that a lesser standard of review, abuse of discretion, was a more appropriate safeguard against arbitrary or abusive actions by a prosecutor.

New Jersey Criminal Lawyers Schwartz Posnock

In a recent decision, the New Jersey Supreme Court determined that the prosecutor’s improper reference during his summation to the defendant’s civil lawsuit against the officers who arrested him in his criminal case did not merit a new trial.

Prosecutorial misconduct will not result in a reversal of a criminal conviction unless it is so egregious that it deprives a defendant of a fair trial. A prosecutor’s comments are deemed to have violated the defendant’s right to a fair trial when they so infect the trial with unfairness as to make the resulting conviction a denial of that defendant’s right to due process. Three factors are assessed by the Court to determine whether a reversal is appropriate: (1) whether the defense attorney made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them.

Conduct and Character are Relevant in Determining Whether to Grant Early Expungements

New Jersey Criminal Lawyers Schwartz Posnock

The Supreme Court recently ruled that judges deciding whether to grant petitioners early expungements of their criminal records in the public interest must balance the nature of the offense and the petitioner’s character and conduct.

In In re Kollman, the petitioners sought to have his record expunged before the standard 10-year period, which is allowed under N.J.S.A. 2C:52-2(a) in certain circumstances. In such a case, a petitioner has the burden of showing that the following three requirements under this statute have been met: (1) at least five years have passed since the petitioner’s conviction; (2) no additional offenses have been committed; and (3) an expungement would be in the public’s interest. The trial judge in In Re Kollman denied the petitioner’s expungement application as against the public interest because the petitioner had admitted to selling Ecstasy. The New Jersey Supreme Court reversed and, balancing the best interests of the public and the petitioner’s behavior, conduct, and character since his guilty plea, ordered a new hearing as to whether his record should be expunged.

New Jersey Criminal Lawyers Schwartz Posnock

Two counts of first degree murder were dismissed on June 15, 2012, against our client, “E.F,” of Red Bank, by a judge sitting in Monmouth County Superior Court. The co-defendant, Antonio Suarez- Perez, who was convicted by a Monmouth County jury on a double homicide committed in Red Bank in February 2009, will be sentenced in July. Suarez-Perez is eligible for two life terms in prison.